FACTS
1. The husband filed a modification complaint asserting that he was entitled to an "off-set for his $7,040 overpayment of child support against his present child support obligation to be applied over time."
ISSUE
1. Issue: Under Massachusetts family law, can a parent receive credit for overpayment of child support?
HOLDING
1. Holding: No, a parent cannot receive credit for overpayment of child support. Such a complaint usually be dismissed with prejudice.
Sunday, November 22, 2015
P.T.C. vs. B.K.G., 83 Mass. App. Ct. 1127 (2013)
FACTS
A. Paternity Case:
1. A judgment of paternity in favor of the mother was entered on December 7, 1995.
2. This judgment required the father to pay $77 per week in child support.
B. Complaint for Modification to Increase Child Support:
1. On August 20, 2009, the mother filed a complaint for modification to increase the child support order, which had remained unchanged since 1995.
2. Father failed to appearing at the hearing on January 7, 2010.
C. Temporary Order Regarding Modification to Increase Child Support:
1. On March 1, 2010, a judge entered a temporary order requiring the father to pay:
A. $183 per week in child support retroactive to January 7, 2010, and
B. $250 in attorney's fees of $250 assessed on account of his failure to appear at a hearing
D. Complaint for Contempt on Temporary Order to Modify Child Support:
1. On June 22, 2010, the mother filed a complaint for contempt alleging:
A. Father had failed to pay the increased child support retroactive to January 7, 2010, and
B. Father failed to pay attorney's fees
2. On July 29, the same judge entered an order on the mother's complaint for contempt:
A. Establishing an arrearage of $3,180 in unpaid child support and
B. $250 in unpaid attorneys fees.
3. The order also required the father to pay the following within 45 days:
A. $1,500 in unpaid child support, and
B. $250 in attorneys fees
E. Father's Answer to Mother's Complaint for Modification and Counterclaim for Modification
1. On November 1, 2010, the father filed an answer to the mother's complaint for modification and a counterclaim for modification, seeking custody of the child.
2. The mother's complaint for modification was consolidated with the father's counterclaim for modification.
F. Trial Decision:
1. Following trial, a different judge from the one who ordered the temporary order, entered a judgment:
A. Requiring father to pay $183 per week in child support;
B. Found that father's counterclaim for modification had been brought in bad faith,
C. Assessed additional attorneys fees for trial in the amount of $4,891.25,
D. Found father guilty of contempt for failing to pay the child support, attorney's fees, and lump sum required by the March 1st and July 29th, 2010 orders
E. Awarded $1,241.25 in attorney's fees incurred through July 29, 2010; and
F. Ordered payment of a portion of the arrearage and the fees within 10 days, with the balance to be paid in accordance with the mandated schedule.
PROCEDURAL HISTORY
A. Appeals Court
1. The father appeals from judgments of modification and contempt.
2. He challenges the modification upon the following grounds:
A. The probate judge's factual finding that the child resides with the mother; and
B. The probate judge's conclusion that his counterclaim for modification was filed in bad faith.
3. He challenges the contempt upon the following grounds:
A. The probate judge's conclusion regarding non-payment of back child support and attorneys fees were improper.
HOLDING
A. Appeals Court Holding
1. The Appeals Court of Massachusetts affirmed the lower court's holding that:
A. The father is required to pay $183 per week in child support
B. The father's counterclaim for modification and request for custody had been brought in bad faith
C. The father is required to pay mother's attorneys fees for the trial in the amount of $4,891.25.
D. The father is guilty of contempt for failing to pay the child support, attorneys fees, and lump sum required by the temporary orders
E. The father is is required to pay an addition $1,241.25 in attorneys fees incurred through July 29, 2010.
F. The father is required to pay a portion of the arrearage and the fees within 10 days, with the balance to be paid in accordance with a mandated schedule.
ANALYSIS
I, Modification of Custody of Child
A. Plainly Wrong/Clearly Erroneous Standard Regarding Child's Current Residence:
1. Issue: Can the appeals court reverse a trial judge's finding if the trial judge based his/her finding on oral testimony?
2. Holding: Yes, but only if the appeals court is convinced that the trial judge's findings are plainly wrong.
3. Rule: The appeals court will not reverse findings made by the judge on the basis of oral testimony unless we are convinced they are plainly wrong. Consent to Adoption of a Minor, 363 Mass. 537, 539, 296 N.E. 2d 176 (1973), Whitney v. Whitney, 325 Mass. 28, 28-29, 88 N.E.2d 647 (1949). Felton v. Felton, 383 Mass. 232, 239, 418 N.E.2d 606 (1981), quoting from Schuler v. Schuler, 382 Mass. 366, 368, 416 N.E.2d 197 (1981). "The 'plainly wrong' standard is the same as the 'clearly erroneous' standard." Gates v. Reilly 453 Mass. 460, 465 n.9, 902 N.E.2d 935 (2009). A finding is clearly erroneous when "although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Custody of Eleanor, 414 Mass. 795, 799, 610 N.E.2d 938 1993, quoting from Building Inspector of Lancaster v. Sanderson, 372 Mass. 157, 160 360 N.E.2d 1051 (1997).
4. Analysis: At trial, both the mother and aunt testified that the mother and child stayed with the aunt several nights a week because the mother worked the night shift, and the aunt and her family cared for the child while the mother was at work. The judge's factual finding that this extended family living and child care arrangement did not undercut the fact that the child resided with the mother was supported by evidence and was not clearly erroneous.
B. Bad Faith in Bringing Modification for Child Custody:
1. Issue: If the trial judge considers all relevant facts when making the determination that a party is bringing a modification of child custody in bad faith, can the appellate court substitute their opinion for the trial judge's?
2. Holding: No, if the trial judge considered all relevant factors before him/her, then the reviewing court cannot substitute their judgment for that of the judge.
3. Rule: The reviewing court cannot substitute their judgment for that of the trial judge if the trial judge considered all relevant factors before him/her in determining the proper child custody arrangement for a child. Wasson v. Wasson, 81 Mass. App. Ct. 574, 576, 965 N.E.2d 882 (2012) (and cases cited). The child's best interest is the ultimate "touchstone inquiry" and the judge's determination of a custody issue is a discretionary decision. Smith v. MacDonald, 458 Mass. 540, 544 547, 941 N.E.2d 1 (2010).
4. Analysis: There was no abuse of discretion here because the trial judge's conclusion regarding custody was largely based on a variety of relevant factors. The judge concluded that, given the
father's lack of involvement in his son's life over a period of many years, the absence of material or
substantial changes in circumstances since the original paternity determination in 1995, and the son's
evident well-being with the mother, the counterclaim was brought solely in response to the mother's
request for an increase in child support, and was brought in bad-faith.
C. Reward of Attorneys Fees in a Modification Action:
1. Issue: Can a trial judge award attorneys fees to be paid by the losing party in a modification trial?2. Holding: Yes, it is within the trial judge's discretion to award attorney fees for a modification
trial.
3. Rule: The statutory authority to shift fees in marital under G.L. c. 208, section 38 applies to modification trials. See DeMatteo v. DeMatteo, 436 Mass. 18, 38-39 762 N.E. 2d 797 (2002).
D. Reward of Attorneys Fees in a Modification Action for NonMarital Children:
1. Issue: Under G.L. c. 208, section 38, can a trial judge reward attorney's fees to be paid by the
losing party in a modification of child custody trial if the parties are not married?
2. Holding: Yes, a trial judge can reward attorney's fees to be paid by the losing party in a
modification of child custody case if the parties are not married.
3. Rule: "[T]he statutory authority to shift attorney's fees in marital custody disputes, G.L. c.208, section 38, has been read to extend to nonmarital children." J.S. v. C.C., 454 Mass. 652, 665, n.19, 912 N.E.2d 933 (2009). See Doe v. Roe, 32 Mass. App. Ct. 63, 68-69 585 N.E.2d 340 (1992).
E. Reward of Attorneys Fees in a Case Brought in Bad Faith:
1. Issue: Can a trial judge award attorneys fees to the winning party in a case that was brought in
bad faith?
2. Holding: Yes, attorneys fees can be awarded to the winning party in a case that was brought in bad faith.
3. Rule: A finding of bad faith may also be a separate, permissible basis for the award of fees. See Wasson v. Wasson, supra at 582.
II. Contempt
A. Appeals Courts Ability to Review Trial Judge's Finding of Contempt
1. Issue: Can the appeals court review the trial judge's finding of contempt?
2. Holding: Yes, the appeals court can review the trial judge's finding of contempt.
3. Rule: The appeals court can review the judge's findings of contempt for abuse of discretion. L.F. v. L.J., 71 Mass. App. Ct. 813, 821, 887 N.E.2d 294 (2008).
B. Standard For Whether There Has Been A Contempt of Order:
1. Issue: If there is a clear and unequivocal command and an equally clear and undoubted disobedience, can a party be found in contempt of the court?
2. Holding: Yes, if there is a clear and unequivocal command and an equally clear and undoubted disobedience, then a party can be found in contempt of court.
3. Rule: A party can be held in contempt of a court order if there is "a clear and unequivocal
command and equally clear and undoubted disobedience." Larson v. Larson, 28 Mass. App. Ct. 338, 340, 551 N.E. 2d 43 (1990).
C. Burden of Proving Inability to Comply With the Order:
1. Issue: In order to find a party in contempt of a court order, does the judge have to find that the party has the ability to comply at the time the contempt judgment is entered?
2. Holding: No, a judge does not have to find that the party has the ability to comply at the time the contempt judgment is entered.
3. Rule: The party who is objecting to the contempt order has the burden of proving that he was
incapable of comply with the order. See G.L. c. 215, Section 34; Diver v. Diver, 402 Mass. 599, 603, 524 N.E. 2d 378 (1998). "[T]he judge was warranted in finding that the [father] had disobeyed [the] order.... Nothing in the record demonstrates that, as a matter of law, the [father] satisfied his burden of proving his inability to comply with the judge's orders." Diver, supra.
4. Analysis: The father did not contest that there was a "a clear and unequivocal command and an equally clear and undoubted disobedience." He conceded that he failed to pay any of the amounts ordered. He maintained instead that he must have been found to have the ability to pay at the time the contempt judgment was entered and that such proof was lacking. However, the father testified at trial to a steady income from his job in the Department of Veterans Affairs. He further testified that he had previously taken on extra work to pay his child support obligations, but had not done so on this occasion. This alone was a sufficient basis for a finding of contempt, as the judge was
"authorized to consider the defendant's earning capacity in setting the amounts to be paid." Diver v. Diver, 402 Mass. 599, 602, 524 N.E.2d 378 (1998). In addition, his financial statement showed that he owned his own home and that he had equity in his home. Capital assets may be considered in determining the ability to pay. See Schuler v. Schuler, 382 Mass. at 375, citing Krokyn v. Krokyn, 378 Mass. 206, 213-214, 309 N.E.2d 733 (1979). In light of these facts, the judge's determination that the father was able, but unwilling, to pay was not an abuse of discretion.
D. Party's Earning Capacity As A Means to Determine Ability to Pay
1. Issue: Can the judge consider the party's earning capacity in determining a person's ability to pay in a contempt case?
2. Holding: Yes, if a party does not currently have a job, the judge can consider the party's earning capacity in order to set an amount owed in a marital contempt case.
3. Rule: A judge is authorized to consider the defendant's earning capacity in setting the amount to be paid in a marital contempt case. Diver v. Diver, 402 Mass. 599, 603, 524 N.E.2d 378 (1998).
E. Capital Assets As A Means to Determine Ability to Pay
1. Issue: Can the judge consider a party's "capital assets" when determining a person's ability to pay in a contempt case?
2. Holding: Yes, the judge can consider a party's "capital assets" when determining a person's ability to pay in a contempt case.
3. Rule: Capital assets may be considered in determining the ability to pay. See Schuler v. Schuler, 382 Mass. at 375, citing Krokyn v. Krokyn, 378 Mass. 206, 213-214, 390 N.E.2d 733 (1979).
III. Appellate Attorney's Fees in a Contempt Case and Bad Faith in a Modification Action
A. Issue: In a contempt case, or a finding of bad faith in a modification action, can the winning party request attorney's fees to be paid by the party in contempt?
B. Holding: Yes, in a contempt case and in a case where bad faith is found in a modification, the winning party can request attorney's fees to be paid by the party in contempt.
C. Rule: Having affirmed the judge's findings on contempt, as well as the finding of bad faith in the modification action, fees are awarded to the winning party in the exercise of the court's discretion. See G.L. c. 208, section 38, G.L. c. 215, section 34A (presumption of entitlement to fees in contempt action in Probate Court); Brash v. Brash, 407 Mass. 101, 107, 551 N.E.2d 523 (1990) (an award of fees in a divorce action is akin to an award for support or maintenance); Bonofiglio v. Commercial Union Ins. Co., 412 Mass. 612, 614, 591 N.E.2d 197)(1992) (the authority to award attorney's fees for civil contempt would "ring hollow if it did not necessarily include a fee for the appeal"); Crossman v. Crossman, 14 Mass. App. Ct. 966, 969, 438 N.E.2d 1090 (1982); Bisienere v. Buccino, 36 Mass. App. Ct. at 753 ("presumption in favor of an award of reasonable fees and costs for a successful party in a contempt action"). Cf. Yorke Mgmt v. Castro, 406 Mass. 17, 19, 546 N.E.2d 342 (1989) (the right to appellate fees under statutes which provide for attorney's fees are "is beyond dispute").
IV. Applying For Appellate Attorney's Fees
A. Issue: Is there a procedure by which the winning party in a contempt or "bad faith finding" in a modification case, can request his/her attorney's fees to be paid by the losing side?
B. Holding: Yes, there is a procedure by which the winning party in a contempt or "bad faith finding" in a modification case can request his/her attorney's fees to be paid by the losing side.
C. Rule: The winning party, within 15 days of the date of the rescript, may file with the reviewing court and serve on the other side an application, including an affidavit or affidavits detailing and supporting the amount of attorney's fees and costs incurred on appeal in accordance with the
procedure described in Favre v, Waktibm 441 Mass. 9, 10-11, 802 N.E.2d 1030 (2004). The affidavit should include (1) contemporaneous time records, (2) the hourly rate charge, and (3) evidence of the
reasonableness of the hourly rate. The losing party, within fifteen days after, may file with the
reviewing court and serve on the mother, an opposition to the amount of fees so claimed.
A. Paternity Case:
1. A judgment of paternity in favor of the mother was entered on December 7, 1995.
2. This judgment required the father to pay $77 per week in child support.
B. Complaint for Modification to Increase Child Support:
1. On August 20, 2009, the mother filed a complaint for modification to increase the child support order, which had remained unchanged since 1995.
2. Father failed to appearing at the hearing on January 7, 2010.
C. Temporary Order Regarding Modification to Increase Child Support:
1. On March 1, 2010, a judge entered a temporary order requiring the father to pay:
A. $183 per week in child support retroactive to January 7, 2010, and
B. $250 in attorney's fees of $250 assessed on account of his failure to appear at a hearing
D. Complaint for Contempt on Temporary Order to Modify Child Support:
1. On June 22, 2010, the mother filed a complaint for contempt alleging:
A. Father had failed to pay the increased child support retroactive to January 7, 2010, and
B. Father failed to pay attorney's fees
2. On July 29, the same judge entered an order on the mother's complaint for contempt:
A. Establishing an arrearage of $3,180 in unpaid child support and
B. $250 in unpaid attorneys fees.
3. The order also required the father to pay the following within 45 days:
A. $1,500 in unpaid child support, and
B. $250 in attorneys fees
E. Father's Answer to Mother's Complaint for Modification and Counterclaim for Modification
1. On November 1, 2010, the father filed an answer to the mother's complaint for modification and a counterclaim for modification, seeking custody of the child.
2. The mother's complaint for modification was consolidated with the father's counterclaim for modification.
F. Trial Decision:
1. Following trial, a different judge from the one who ordered the temporary order, entered a judgment:
A. Requiring father to pay $183 per week in child support;
B. Found that father's counterclaim for modification had been brought in bad faith,
C. Assessed additional attorneys fees for trial in the amount of $4,891.25,
D. Found father guilty of contempt for failing to pay the child support, attorney's fees, and lump sum required by the March 1st and July 29th, 2010 orders
E. Awarded $1,241.25 in attorney's fees incurred through July 29, 2010; and
F. Ordered payment of a portion of the arrearage and the fees within 10 days, with the balance to be paid in accordance with the mandated schedule.
PROCEDURAL HISTORY
A. Appeals Court
1. The father appeals from judgments of modification and contempt.
2. He challenges the modification upon the following grounds:
A. The probate judge's factual finding that the child resides with the mother; and
B. The probate judge's conclusion that his counterclaim for modification was filed in bad faith.
3. He challenges the contempt upon the following grounds:
A. The probate judge's conclusion regarding non-payment of back child support and attorneys fees were improper.
HOLDING
A. Appeals Court Holding
1. The Appeals Court of Massachusetts affirmed the lower court's holding that:
A. The father is required to pay $183 per week in child support
B. The father's counterclaim for modification and request for custody had been brought in bad faith
C. The father is required to pay mother's attorneys fees for the trial in the amount of $4,891.25.
D. The father is guilty of contempt for failing to pay the child support, attorneys fees, and lump sum required by the temporary orders
E. The father is is required to pay an addition $1,241.25 in attorneys fees incurred through July 29, 2010.
F. The father is required to pay a portion of the arrearage and the fees within 10 days, with the balance to be paid in accordance with a mandated schedule.
ANALYSIS
I, Modification of Custody of Child
A. Plainly Wrong/Clearly Erroneous Standard Regarding Child's Current Residence:
1. Issue: Can the appeals court reverse a trial judge's finding if the trial judge based his/her finding on oral testimony?
2. Holding: Yes, but only if the appeals court is convinced that the trial judge's findings are plainly wrong.
3. Rule: The appeals court will not reverse findings made by the judge on the basis of oral testimony unless we are convinced they are plainly wrong. Consent to Adoption of a Minor, 363 Mass. 537, 539, 296 N.E. 2d 176 (1973), Whitney v. Whitney, 325 Mass. 28, 28-29, 88 N.E.2d 647 (1949). Felton v. Felton, 383 Mass. 232, 239, 418 N.E.2d 606 (1981), quoting from Schuler v. Schuler, 382 Mass. 366, 368, 416 N.E.2d 197 (1981). "The 'plainly wrong' standard is the same as the 'clearly erroneous' standard." Gates v. Reilly 453 Mass. 460, 465 n.9, 902 N.E.2d 935 (2009). A finding is clearly erroneous when "although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Custody of Eleanor, 414 Mass. 795, 799, 610 N.E.2d 938 1993, quoting from Building Inspector of Lancaster v. Sanderson, 372 Mass. 157, 160 360 N.E.2d 1051 (1997).
4. Analysis: At trial, both the mother and aunt testified that the mother and child stayed with the aunt several nights a week because the mother worked the night shift, and the aunt and her family cared for the child while the mother was at work. The judge's factual finding that this extended family living and child care arrangement did not undercut the fact that the child resided with the mother was supported by evidence and was not clearly erroneous.
B. Bad Faith in Bringing Modification for Child Custody:
1. Issue: If the trial judge considers all relevant facts when making the determination that a party is bringing a modification of child custody in bad faith, can the appellate court substitute their opinion for the trial judge's?
2. Holding: No, if the trial judge considered all relevant factors before him/her, then the reviewing court cannot substitute their judgment for that of the judge.
3. Rule: The reviewing court cannot substitute their judgment for that of the trial judge if the trial judge considered all relevant factors before him/her in determining the proper child custody arrangement for a child. Wasson v. Wasson, 81 Mass. App. Ct. 574, 576, 965 N.E.2d 882 (2012) (and cases cited). The child's best interest is the ultimate "touchstone inquiry" and the judge's determination of a custody issue is a discretionary decision. Smith v. MacDonald, 458 Mass. 540, 544 547, 941 N.E.2d 1 (2010).
4. Analysis: There was no abuse of discretion here because the trial judge's conclusion regarding custody was largely based on a variety of relevant factors. The judge concluded that, given the
father's lack of involvement in his son's life over a period of many years, the absence of material or
substantial changes in circumstances since the original paternity determination in 1995, and the son's
evident well-being with the mother, the counterclaim was brought solely in response to the mother's
request for an increase in child support, and was brought in bad-faith.
C. Reward of Attorneys Fees in a Modification Action:
1. Issue: Can a trial judge award attorneys fees to be paid by the losing party in a modification trial?2. Holding: Yes, it is within the trial judge's discretion to award attorney fees for a modification
trial.
3. Rule: The statutory authority to shift fees in marital under G.L. c. 208, section 38 applies to modification trials. See DeMatteo v. DeMatteo, 436 Mass. 18, 38-39 762 N.E. 2d 797 (2002).
D. Reward of Attorneys Fees in a Modification Action for NonMarital Children:
1. Issue: Under G.L. c. 208, section 38, can a trial judge reward attorney's fees to be paid by the
losing party in a modification of child custody trial if the parties are not married?
2. Holding: Yes, a trial judge can reward attorney's fees to be paid by the losing party in a
modification of child custody case if the parties are not married.
3. Rule: "[T]he statutory authority to shift attorney's fees in marital custody disputes, G.L. c.208, section 38, has been read to extend to nonmarital children." J.S. v. C.C., 454 Mass. 652, 665, n.19, 912 N.E.2d 933 (2009). See Doe v. Roe, 32 Mass. App. Ct. 63, 68-69 585 N.E.2d 340 (1992).
E. Reward of Attorneys Fees in a Case Brought in Bad Faith:
1. Issue: Can a trial judge award attorneys fees to the winning party in a case that was brought in
bad faith?
2. Holding: Yes, attorneys fees can be awarded to the winning party in a case that was brought in bad faith.
3. Rule: A finding of bad faith may also be a separate, permissible basis for the award of fees. See Wasson v. Wasson, supra at 582.
II. Contempt
A. Appeals Courts Ability to Review Trial Judge's Finding of Contempt
1. Issue: Can the appeals court review the trial judge's finding of contempt?
2. Holding: Yes, the appeals court can review the trial judge's finding of contempt.
3. Rule: The appeals court can review the judge's findings of contempt for abuse of discretion. L.F. v. L.J., 71 Mass. App. Ct. 813, 821, 887 N.E.2d 294 (2008).
B. Standard For Whether There Has Been A Contempt of Order:
1. Issue: If there is a clear and unequivocal command and an equally clear and undoubted disobedience, can a party be found in contempt of the court?
2. Holding: Yes, if there is a clear and unequivocal command and an equally clear and undoubted disobedience, then a party can be found in contempt of court.
3. Rule: A party can be held in contempt of a court order if there is "a clear and unequivocal
command and equally clear and undoubted disobedience." Larson v. Larson, 28 Mass. App. Ct. 338, 340, 551 N.E. 2d 43 (1990).
C. Burden of Proving Inability to Comply With the Order:
1. Issue: In order to find a party in contempt of a court order, does the judge have to find that the party has the ability to comply at the time the contempt judgment is entered?
2. Holding: No, a judge does not have to find that the party has the ability to comply at the time the contempt judgment is entered.
3. Rule: The party who is objecting to the contempt order has the burden of proving that he was
incapable of comply with the order. See G.L. c. 215, Section 34; Diver v. Diver, 402 Mass. 599, 603, 524 N.E. 2d 378 (1998). "[T]he judge was warranted in finding that the [father] had disobeyed [the] order.... Nothing in the record demonstrates that, as a matter of law, the [father] satisfied his burden of proving his inability to comply with the judge's orders." Diver, supra.
4. Analysis: The father did not contest that there was a "a clear and unequivocal command and an equally clear and undoubted disobedience." He conceded that he failed to pay any of the amounts ordered. He maintained instead that he must have been found to have the ability to pay at the time the contempt judgment was entered and that such proof was lacking. However, the father testified at trial to a steady income from his job in the Department of Veterans Affairs. He further testified that he had previously taken on extra work to pay his child support obligations, but had not done so on this occasion. This alone was a sufficient basis for a finding of contempt, as the judge was
"authorized to consider the defendant's earning capacity in setting the amounts to be paid." Diver v. Diver, 402 Mass. 599, 602, 524 N.E.2d 378 (1998). In addition, his financial statement showed that he owned his own home and that he had equity in his home. Capital assets may be considered in determining the ability to pay. See Schuler v. Schuler, 382 Mass. at 375, citing Krokyn v. Krokyn, 378 Mass. 206, 213-214, 309 N.E.2d 733 (1979). In light of these facts, the judge's determination that the father was able, but unwilling, to pay was not an abuse of discretion.
D. Party's Earning Capacity As A Means to Determine Ability to Pay
1. Issue: Can the judge consider the party's earning capacity in determining a person's ability to pay in a contempt case?
2. Holding: Yes, if a party does not currently have a job, the judge can consider the party's earning capacity in order to set an amount owed in a marital contempt case.
3. Rule: A judge is authorized to consider the defendant's earning capacity in setting the amount to be paid in a marital contempt case. Diver v. Diver, 402 Mass. 599, 603, 524 N.E.2d 378 (1998).
E. Capital Assets As A Means to Determine Ability to Pay
1. Issue: Can the judge consider a party's "capital assets" when determining a person's ability to pay in a contempt case?
2. Holding: Yes, the judge can consider a party's "capital assets" when determining a person's ability to pay in a contempt case.
3. Rule: Capital assets may be considered in determining the ability to pay. See Schuler v. Schuler, 382 Mass. at 375, citing Krokyn v. Krokyn, 378 Mass. 206, 213-214, 390 N.E.2d 733 (1979).
III. Appellate Attorney's Fees in a Contempt Case and Bad Faith in a Modification Action
A. Issue: In a contempt case, or a finding of bad faith in a modification action, can the winning party request attorney's fees to be paid by the party in contempt?
B. Holding: Yes, in a contempt case and in a case where bad faith is found in a modification, the winning party can request attorney's fees to be paid by the party in contempt.
C. Rule: Having affirmed the judge's findings on contempt, as well as the finding of bad faith in the modification action, fees are awarded to the winning party in the exercise of the court's discretion. See G.L. c. 208, section 38, G.L. c. 215, section 34A (presumption of entitlement to fees in contempt action in Probate Court); Brash v. Brash, 407 Mass. 101, 107, 551 N.E.2d 523 (1990) (an award of fees in a divorce action is akin to an award for support or maintenance); Bonofiglio v. Commercial Union Ins. Co., 412 Mass. 612, 614, 591 N.E.2d 197)(1992) (the authority to award attorney's fees for civil contempt would "ring hollow if it did not necessarily include a fee for the appeal"); Crossman v. Crossman, 14 Mass. App. Ct. 966, 969, 438 N.E.2d 1090 (1982); Bisienere v. Buccino, 36 Mass. App. Ct. at 753 ("presumption in favor of an award of reasonable fees and costs for a successful party in a contempt action"). Cf. Yorke Mgmt v. Castro, 406 Mass. 17, 19, 546 N.E.2d 342 (1989) (the right to appellate fees under statutes which provide for attorney's fees are "is beyond dispute").
IV. Applying For Appellate Attorney's Fees
A. Issue: Is there a procedure by which the winning party in a contempt or "bad faith finding" in a modification case, can request his/her attorney's fees to be paid by the losing side?
B. Holding: Yes, there is a procedure by which the winning party in a contempt or "bad faith finding" in a modification case can request his/her attorney's fees to be paid by the losing side.
C. Rule: The winning party, within 15 days of the date of the rescript, may file with the reviewing court and serve on the other side an application, including an affidavit or affidavits detailing and supporting the amount of attorney's fees and costs incurred on appeal in accordance with the
procedure described in Favre v, Waktibm 441 Mass. 9, 10-11, 802 N.E.2d 1030 (2004). The affidavit should include (1) contemporaneous time records, (2) the hourly rate charge, and (3) evidence of the
reasonableness of the hourly rate. The losing party, within fifteen days after, may file with the
reviewing court and serve on the mother, an opposition to the amount of fees so claimed.
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